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BALTIMORE, MD – Troubled by the Maryland State Police's abusive use of state wiretap laws to prosecute a motorcyclist who posted a YouTube video of an MSP trooper making a traffic stop with his gun drawn, the American Civil Liberties Union of Maryland is providing legal counsel to ensure that First Amendment principles are protected and that citizens are able to hold law enforcement officials accountable through legitimate use of cameras and audio recorders.
"This prosecution by the Maryland State Police and Harford County State's Attorney is profoundly dangerous, and seems meant to intimidate people from making a record of what public officials do," said David Rocah, Staff Attorney at the ACLU of Maryland. "It is hard to imagine anything more antithetical to a democracy than for the government to tell its citizens that they do not have the right to record what government officials say or do or how they behave."
The ACLU has long been concerned about improper police threats that Maryland's wiretap law prevents citizens from recording their encounters with the law enforcement. In order for such recording to be illegal under the Maryland law, it must involve audio, and the subjects must have a reasonable expectation of privacy in their communications.
"Police officers doing their jobs in a public place, such as an interstate highway, cannot reasonably claim that their communications are private," said ACLU Legal Director Deborah Jeon. "This is especially true for highway stops, since many police departments – including the Maryland State Police – record the stops themselves, thus negating any possibility that the officer would reasonably believe the conversation to be private."
On March 5, 2010, Anthony Graber was riding his motorcycle on Interstate 95, and was confronted by a plainclothes Maryland State Police trooper as he came to a stop at an exit. Graber had a video camera prominently mounted on his helmet to record his ride, and the camera recorded the officer's actions and statements at the outset of the encounter, which ended with Graber receiving a ticket for speeding. Five days later, Graber posted a video on YouTube showing the encounter, in which the state trooper leaps out of his unmarked vehicle, not in a uniform, and with his gun drawn, yelling at Graber for several seconds to get off of his motorcycle before identifying himself as a police officer.
On March 15, the trooper obtained an arrest warrant charging Graber with a violation of the state wiretap law. Based on the wiretap charges, the State Police also obtained a search warrant authorizing them to seize all of the Graber family's computers, along with Graber's video camera.
Several weeks later, the Harford County State's Attorney obtained a grand jury indictment adding several additional motor vehicle charges, and additional wiretap violations, including one alleging possession of "a device . . . primarily useful for the purpose of surreptitious interception of oral communications," referring to the widely sold and clearly noticeable GoPro video camera that had been mounted on Graber's motorcycle helmet.
Graber, a Staff Sergeant in the Maryland Air National Guard, and a computer systems engineer, faces up to 16 years in prison if convicted on all of the charges, along with the loss of his job if he is convicted of any of the wiretap charges, each of which is a felony with a maximum penalty of five years in prison. Graber lives in Harford County with his wife and two young children.
Anthony Graber's legal counsel includes Deborah Jeon and David Rocah of the ACLU of Maryland, and John I. Stewart of the Washington, D.C. law firm of Crowell & Moring, LLP.
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